1. The author of the
communication is J. L., an Australian citizen residing in Moorabbin,
Victoria, Australia. He claims to be a victim of violations by Australia of
article 14 of the International Covenant on Civil and Political Rights. The
Optional Protocol entered into force for Australia on 25 December 1991.

THE FACTS AS SUBMITTED BY THE
AUTHOR:

2.1 The author is a
solicitor; in the State of Victoria, the practice of law is regulated by the
Legal Profession Practice Act of 1958. Pursuant to Section 83 (l), no one
may practice law unless he or she is duly qualified and holds a certificate
issued by the Law Institute of Victoria. Under the Act, two fees must be
paid before a practising certificate is issued: an annual practising fee and
a compulsory professional indemnity insurance premium. Pursuant to Section
90, anyone without a practising certificate is not qualified to practice
law.

2.2 Section 88 (2) (c)
stipulates that the rules determining a practising fee for solicitors have
no effect unless approved by the Chief Justice. The latter may also approve
the regulations concerning the professional indemnity insurance. In 1985,
the Chief Justice approved a new insurance scheme proposed by the Law
Institute, under which its Solicitors Liability Committee was entitled to
henceforth determine the insurance premium.

2.3 In 1986, J. L. refused
to pay the increased premium for the new insurance scheme, since he
considered it to be invalid. He claimed that, apart from being a tax which
had to be determined by Parliament, the Institute had not sought the
necessary recommendations from its members for the new rules, nor had it
complied with the so-called regulatory impact statement requirements of the
Subordinate Legislation Act of 1962.

2.4 The Institute refused
to issue the author's practising certificate; the latter did, however,
continue to practice. On 13 May 1986, the Secretary of, the Institute
obtained an injunction against J. L. pursuant to Section 90 (7)of the Act,
which stipulates that :

"On application made . . . by
the secretary . . . of the Institute, the Supreme Court may, if it is
satisfied that an unqualified person is acting or practising as a solicitor
. . . . make an order restraining that person from so acting or practising."

2.5 J. L. ignored the
injunction. On 21 May 1986, the Chief Justice sentenced him to three weeks
imprisonment for contempt of court. The author appealed the injunction and
the committal order. On 10 April 1987, the full Court dismissed the appeal
against the committal order but set aside the injunction, inter alia on the
ground that the members of the Institute had not recommended the new
insurance regulations.

2.6 Under a subsequent
amendment to the Act, the Solicitors Liability Committee may determine the
insurance premium with the approval of the Institute's Council and without
the necessary recommendations from the Institute's members. Notwithstanding,
the author, maintaining that the fee constituted a form of taxation that
would have to be determined by Parliament, continued to practice without the
requisite certificate.

2.7 Throughout 1988, the
author refused to pay his practising fees to the Institute, complaining that
the Institute used the fees to "improperly" finance private activities,
rather than for administrative or regulatory .purposes. He contended that
although the Act did not specify the purpose for which the fee should be
used, it was a statutory fee and should accordingly be used solely for such
purposes. He further claimed that, as the fee was also fee for membership in
the Institute, he was forced to become member in a union.

2.8 On 11 and 15 March
1988, another judge of the Supreme Court, upon application of the Law
Institute, issued another injunction against J. L. He ruled that the
practising fee was commensurate to the Institute's statutory functions and
that the insurance premium was not a "tax", but a contribution to the
governance and good order of the profession. The order of 15 March 1988
carried a stay until the "final determination of an appeal by the applicant
or further order". An appeal against the order of 11 March was rejected by
the full Court on 8 December 1988. The High Court refused leave to appeal
from the court's judgment on 13 October 1989. No application to modify or
discharge the orders was made by the Law Institute.

2.9 On 30 November 1990, a
Supreme Court judge again found the author in contempt of court. The author
argued that a stay of the order of 15 March 1988 was still valid, as he had
not appealed against it. The judge, however, held that the stay had expired
with the High Court's denial of leave to appeal. On 7 December 1990, the I
judge fined the author for having failed to obtain practising certificates
for 1989 and 1990. The full Court denied leave to appeal against this order
on 15 March 1991. Upon application from the Institute, the author's name was
struck off the roll of Solicitors and barristers of the Supreme Court on 11
June 1991. In addition, the author was again fined for contempt of court,
with the proviso that if the fine was not paid within thirty days, he would
be placed under arrest.

2.10 The author did not
appeal against this order, nor did he pay the fine. On 1 September 1991, he
was taken into custody. Upon application of the Institute, a further order
was issued on 2 October 1991, by which the author was to remain in custody
until 29 November 1991. Applications for habeas corpus and bail were
dismissed.

THE COMPLAINT

3.1 The author complains
that he has been denied proceedings before an independent and impartial
tribunal. He alleges that the Supreme Court of Victoria is institutionally
linked to the Law Institute by means of Section 88 (2) (c)of the Legal
Profession Practice Act (see paragraph 2.2 above); the judges' rulings are
said to be partial because of their "special relationship" with the
Institute. It is further submitted that the judges of the Supreme Court
simply refused to rule on the issue of whether the practising fee and
insurance premium were valid.

3.2 The author claims that
his detention was unlawful, as he was detained for refusing to pay a fine
that in fact exceeded the maximum fine envisaged by the Act. He contends
that the court had no jurisdiction to entertain the case against him, as
there was no court rule authorizing a committal order for an indefinite
period until the payment of the fine.

3.3 With respect to the
date of entry into force of the Optional Protocol for Australia, it is
claimed that the violation of article 14 of the Covenant has continuing
effects, in that the author remains struck off the roll of solicitors of the
Supreme Court, without any prospect of being reinstated.

ISSUES AND PROCEEDINGS BEFORE
THE COMMITTEE:

4.1 Before considering any
claims contained in a communication, the Human Rights Committee must, in
accordance with rule 87 of its rules of procedure, decide whether or not it
is admissible under the Optional Protocol to the Covenant.

4.2 The Committee has
noted the author's claim that his detention between 1 September and 29
November 1991 was unlawful. It observes that this event occurred prior to
the entry into force of the Optional Protocol for Australia (25 December
1991), and that it does not have consequences which in themselves constitute
a violation of any of the provisions of the Covenant. Accordingly, this part
of the communication is inadmissible ratione temporis. As to the author's
contention that he was denied a fair and impartial hearing, the Committee
notes that although the relevant court hearings took place before 25
December 1991, the effects of the decisions taken by the Supreme Court
continue ,until the present time. Accordingly, complaints about violations
of the author's rights allegedly ensuing from these decisions are not in
principle excluded ratione temporis.

4.3 As to the author's
contention that he was forced to contribute to the activities of the Law
Institute by paying a practicing fee as well as an insurance premium, the
Committee notes that the regulation of the activities of professional bodies
and the scrutiny of such regulations by the courts may raise issues in
particular under article 14 of the Covenant. More particularly, the
determination of any rights or obligations in a suit at law In relation
thereto entitles an author to a fair and public hearing. It is in principle
for States parties to regulate or approve the activities of professional
bodies, which may encompass the provision for insurance schemes. In the
instant case, the fact that the practice of law is governed by the Legal
Profession Practice Act of 1958 and that the rules providing for a
practicing fee and a professional indemnity , insurance will have no effect
unless approved by the Chief Justice does not lead in itself to the
conclusion that the court, as an institution, is not an independent and
impartial tribunal. Furthermore, the entitlement of the court, under
Australian law, to commit the author for contempt of court for failing to
respect an injunction not to practice law without paying the practicing fee
and the insurance premium, is a matter of domestic law and beyond the
Committee's competence to investigate.

4.4 Accordingly, the
communication is inadmissible as incompatible with the provisions of the
Covenant, within the meaning of article 3 of the Optional Protocol.

5. The Human Rights
Committee therefore decides:

(a) that the
communication is inadmissible under article 3 of the Optional Protocol;

(b) that this decision
shall be transmitted to the author and, for information, to the State party